S. ABDUL JABBAR KHAN (CHAIRMAN) .-Rao Abdul Jalil Khan, A. I.-G. Pakistan Railways Police, Lahore, has filed this appeal under section 4 of the Punjab Service Tribunal Act, 1974, in which he has impleaded Addl. I.-G. P., Punjab, Lahore; and the Province of the Punjab through the Addl. I.-G.
Police Punjab, Lahore, as respondents.
2. By virtue of this appeal the appellant has prayed that the order of the Addl. I.-G. P. Dated 16-7- 1979 in compliance to the order of Govern--ment dated 26-10-1978, may be declared as wholly illegal, unlawful, mala fide and without lawful authority by setting aside the notification dated 26- 10-1978 and by holding the earlier notification dated 21-1-1976 remains to be operative in the case of the appellant.
3. Brief facts of the case are that the appellant joined the Police Department as A. S.-I. On 10-7-1949.
Soon after his appointment he applied for grant of war service benefits as he had rendered active military, service from 14-5-1942 to 22-8-1946. The claim of the appellant remained pending for one reason or the other for a pretty long time and ultimately the matter was considered by the Home Department in extenso. It was found by the Home Department vide its U. O. No. 9.7-HP/70 dated July, 1975, that the claim of the appellant was genuine and the same was referred to the S & G A D for advice. It was on 21-11-1975 vide memo. No.` 9-7/ HP-11/70 that the Home Secretary Government of the Punjab, directed the I.-G. P., Lahore that it was decided to grant the appellant war service benefits. In this way the appellant was given presumptive seniority as A. S.-I. With effect from 1-4- 1945, and thereafter promotion to the ranks of S.-I., Selection Grade, Inspector and D. S.-P. Was to be regulated from the date from which the official next below the appellant in the cadre of A. S.-I.
Was promoted as S.-I. And onward. The appellant was also held entitled to the arrears of pay. In pursuance of the decision of the Government conveyed through memo. Dated 21-11-1975, Notification No. 1443/E-I dated 21-1-1976 was issued by the Addl. I.-G. P. With the result that the appellant was granted war service benefit in his cadre post of A. S.-I. And accordingly in the superior ranks as is detailed in the Notification. The only claim of the appellant which was not fulfilled, was the arrears of pay for which he remained agitating. The respondent however served a show-cause notice to the appellant to show cause as to why Notification dated 21-1-1976, granting war service benefits to him, may not be cancelled. The appellant submitted his reply to the said notice on 17-5-1979, which was not accepted by the I.-G. P. And vide a notification dated 26-10- 1978, the grant of war service benefits was denotified. Hence this appeal.
4. We have heard the learned counsel for the appellant as well as learned District Attorney assisted by the representative of the Department and have perused the record of the case carefully with their assistance. Learned counsel for the appellant has argued that there is no dispute about the fact that appellant rendered active military service from 14-5-1942 to 22-8-1946, and in this way was a case of ex-serviceman, entitled to the war service benefits. It has been further submitted that the appellant's appointment as A. S.-I. Were. f. 10-7-1949, was against a war reserved vacancy which had occurred from 18-9-1943 to 1-1-1946. Learned counsel has pointed out another undisputed fact that there occurred 265 vacancies of A. S.-I. In Multan Region where the appellant was given his first appointment as A. S.-I. And no ex-serviceman was appointed against any of the vacancies. Learned counsel has further argued that even temporary vacancies which had occurred during 18-9-1943 to 1-1-1946, were considered to be "reserved" vacancies under the War Service Rules and has relied on letter dated 6-1-1968, issued in this behalf. Learned counsel has submitted that this letter was questioned before the High Court but the same was upheld and appeal against the said order of the High Court was dismissed by Supreme Court of Pakistan.
5. Learned counsel has vehemently argued that once a notification was made in favour of the appellant after taking into consideration all pros and cons of the case the same cannot be denotified under the cover of section 21 of the General Clauses Act as certain rights and interests had accrued to the appellant which could not be taken away under the principle of locus poenitentiae. He has further mentioned the case of 14 officers MJs. Muhammad Akhtar Hussain and others etc. To show that although their cases were at par with the appellant, no denotification of their claim had been made and the appellant has been chosen for this treatment just on whim and fancy on the part of respondents. In this respect he has relied on NLR 1979 Service 86 the judgment of this Tribunal in which it has been held that once an order of war service benefits has been acted upon and in consequence thereof, rights have accrued to the person concerned, then subsequently rights cannot be taken away.
6. On the other hand learned District Attorney has adopted the comments filed by the respondents and has submitted that the notification so made was withdrawn when an objection was' so taken from the Finance Department that the appellant had no case for grant of war service benefits. It was only after this objection came to the notice of the Government that the Governor of the Punjab was constrained to withdraw the approval contained in Government of the Punjab, Home Department's Notification dated 21-1-1976. Learned D. A. Has submitted that the appellant was given show-cause notice and after due consideration of his reply the notification in his favour was denotified.
7. We have given our anxious thought to the arguments raised by both the parties and find that the mainstay of the respondent's case is that when the Government took action in its favour there was a stipulation contained in para. 5 of the memo. Dated 21-11-1975, that the Government has reserved the right "to review, modify or revise the aforesaid order in case there is any subsequent change in position due to any clerical/ factual or legal omission commission or otherwise. In that case he will have to refund the amount drawn by him as arrears on this account". We have perused this stipulation carefully and have also examined the case of the appellant keeping into consideration the said stipulation and find that there was neither a clerical, arithmetical or factual mistake which justified the application of said condition. The case of the appellant was considered in all its details and the order was issued after ascertaining full facts in respect of rights of the appellant to get benefits, in question. We are also of the opinion that the entire proceedings which resulted in the issuance of memo. Dated 26-10-1978 in the Home Department were also behind the back of the appellant and he was never associated with such proceedings. The show-cause notice seems to be just an eye wash when the respondents had made up their mind in (obedience to the Government orders as a good subordinate) and only chose to hear the appellant when all was already completed. The issuance of the notice to our mind is nothing but completion of formalities whereas the record of this case reveals that the decision had already been arrived at by the Home Department without affording any opportunity to the appellant to plead his case. We have also examined the case of M/s. Muhammad Akhtar Hussain and others etc. And there is no denial of the fact that these people are also beneficiaries of the war service benefits but they were not called upon to show cause why the benefits so granted to them be not withdrawn. We cannot remain oblivious of the fact that the appellant has gone a long way into the service on the strength of the policy notification in his favour and it would be highly unjustified to throw him back and to take away the vested rights which so accrued in his favour and that too by the same Home Department which earlier had thrashed his case fully, over a period of 16 years and then had come to a definite decision. We are also satisfied that the principle of the locus poenitentiae will be fully applicable in this case and the verdict of there Lordships of the Supreme Court of Pakistan in Raja Mohammad Nawaz's case (1981SCMR523), would also come into display in his favour. Their Lordships have held that once certain rights accrued to a civil servant and that too for quite a long period then even if it is found that the same were granted or bestowed upon him due to some mistake of the authority so granting him, it would be not justified to withdraw the same. We have also Peru-ed NLR 1979 Service 86 the judgment of this Tribunal and find that the same is fully applicable to the case of the appellant and we respectfully follow the same. Section 21 of the General Clauses Act empowers the Government to retrace the wrong steps taken by them and as such the authority that ha power to make an order has also the power to undo it. But this rules is subject to the exception that where the order has taken legal effect g and in pursuance thereto rights accrued in favour of the person, such order cannot be withdrawn or rescinded to the detriment of that person(s). This law is laid down in Raja Muhammad Nawaz so mentioned in the earlier part of our judgment, a case decided by Supreme Court of Pakistan.
8. The result is we proceed to accept the appeal, set aside the impugned notification and hold that earlier notification dated 21-1-1976. Will hold the field in favour of the appellant. The appellant will be entitled to war service benefits which had already been granted to him by the Government after full consideration of his case by their earlier notification so mentioned above. However, the parties will bear their own costs.